November 4, 2015

Mainstream media articles today sent the message that progressives lost the country after yesterday’s election. Seventeen percent of voters in Kentucky picked a GOP governor for the first time since, a man who even the RNC was reluctant to support. Virginia kept a Republican legislature, and Houston kept trans people from being able to use the appropriate restroom for them. Almost 10,000 voters in Coos County (OR) decided that they could not obey gun laws that they don’t like. But across the country were pockets of successes for human rights.

Pennsylvania: In a highly expensive election, Democrats swept three seats on the Pennsylvania Supreme Court, giving them a five-to-two majority; previously, Republicans had controlled the bench three-to-two, with two vacancies. This majority will influence the next round of legislative redistricting because it picks the tiebreaking vote for the commission that draws maps for the state legislature. Republicans chose the tiebreaker last time, but the newly elected judges with ten-year terms will be there in 2021. Eliminating the gerrymandering from the past redistricting session could move the legislature to progressive instead of conservative.

Ohio: In another movement to stop gerrymandering, voters—by a margin of 71 percent to 29 percent—passed a constitutional amendment to greatly reduce or even eliminate gerrymandering of state legislative districts in 2021. The state Senate had approved the measure by 28-1, and the state House of Representatives had voted in favor by 81-7. Ohio joins Virginia to be is one of the most gerrymandered states in the U.S. While Democratic candidates for the House got 55,000 more votes than GOP candidates, Republicans won 60 out of 99 seats. The GOP got 75 percent of the U.S. Representative seats despite getting only 57 percent of the vote in 2014.

Colorado: Voters decided to leave the taxes on cannabis with the state rather than collecting about $8 each. They made this decision despite advertising from the Tea Party (Teapublicans?) urging them to oppose the initiative that would take that money out of their pockets. The taxes go to public education, youth programs, and law enforcement.

Indianapolis (IN): Democrat Joe Hogsett defeated Republican Chuck Brewer 63-37 after the city had a GOP mayor for the past eight years.

Salt Lake City (UT): In this very red state, Democrat Jackie Biskupski unseated two-term Mayor Rich Becker (a fellow Democrat) by a 52-48 margin, making her the first openly gay mayor in Utah history.

Charlotte (NC): Democrat Jennifer Roberts squeaked out a 52-48 win over Republican Edwin Peacock to win the mayoralty in the state’s largest city, possibly slowing his political career. The city’s last GOP mayor, Pat McCrory, is now governor.

Mississippi: State Attorney General Jim Hood, the last Democrat holding statewide office in the Deep South, won a fourth term by a 56-44 spread. He has been a strong advocate for Hurricane Katrina victims still battling insurance companies. Democrats also took two of three seats on the Public Service Commission, the board that regulates utility companies. This may help keep the Mississippi Power Company from passing massive cost over-runs for a new $6.5 billion power plant to customers.

Maine: Voters expanded the state’s Clean Election Act by a 55-45 margin. The result is greater public funding for candidates, mandatory donor disclosure, and penalties for violators.

Seattle (WA): A wide margin passed the new campaign finance system to give each voter four $25 “democracy vouchers” every two years that they could then give as donations to candidates for city races like mayor and city council. Recipients will have to abide by additional caps on donations and spending as well as participating in at least three debates.

Tacoma (WA): Voters approved an $12 increase in the minimum wage over the next two years.

Elizabeth (NJ): The state’s fourth-largest city joined the three biggest ones to institute paid sick leave along with the states of California, Connecticut, Massachusetts, and Oregon.

Jefferson County (CO): Conservatives on the school board who tried to rewrite the AP U.S. history curriculum to “present positive aspects of the United States and its heritage” and “promote citizenship, patriotism, essentials and benefits of the free enterprise system” lost their seats. In this case, the Koch brothers’ big cash infusion on the part of the losing school board members in the state’s second-largest school district was wasted.

New Jersey: Democrats picked up three more seats in the state Assembly, giving them the biggest majority in 36 years. Their governor, Chris Christie, is rapidly going done in the polls of presidential candidates.

Ohio: Voters successfully opposed the legalization of marijuana. Although this vote may not seem progressive, the constitutional amendment would have given all sales rights of the cannabis to just seven wealthy people. The state also voted to keep the initiative process from being used for personal economic benefit as it would “prohibit any petitioner from using the Ohio Constitution to grant a monopoly, oligopoly, or cartel for their exclusive financial benefit or to establish a preferential tax status.” Although this sounds good, the Ohio Ballot Board determines whether this is the intent of an initiative. Right now that board is a 2-to-2 split between Republicans and Democrats with the GOP Secretary of State Jon Husted breaking any tie. That gives him sole power for the determination of what a “monopoly” might be. In future initiatives about legalizing marijuana, Husted could determine that 1,000 growers equal a monopoly.

Kentucky elected a GOP governor who plans to take health insurance from 400,000 state residents, but a Kentucky county clerk, Kim Davis, may have changed the nation’s view on “religious liberty.” She claimed that being forced to issue marriage licenses to same-gender couples violates her Freedom of Religion rights, but 56 percent of the people in the United States now think that she is wrong. According to this majority, government officials should put aside their religious beliefs when doing their jobs. Just last July after the Supreme Court ruling in favor of marriage equality, 49 percent of the people thought that Davis was right; that number has been dropped by 14 percent to 41 percent. Among Republicans, that figure dropped from 72 percent to 58 percent, almost a 20 percent decrease.

As for the future of Kentucky, the people may need more than prayer. Under the two terms of Gov. Steve Beshear (D), Kentucky became a state with an unemployment rate at a 14-year low and a reduction of its uninsured by over 40 percent. When the newly elected governor, Matt Bevin, ran against Sen. Mitch McConnell (R-KY) a year ago, Republicans called Bevin a “con man” who “pathologically” lies. He didn’t tell the truth about his educational background, and his business needed a taxpayer bailout. During his campaign, he also repeatedly lied about being delinquent on property taxes owed in Louisiana and on a Maine vacation home. He lied about giving a speech at an illegal cockfighting gathering. Caught in his lies, he created an “enemies list” of journalists who confronted his lying. Kim Davis’ Rowan County, however, didn’t vote for Bevin. [Photo: Bevin with Kim Davis and her husband, Joe, with Ted Cruz lurking in the background.]

Bevin’s term will show how far he will go to hurt his constituency. If the governor of Kansas, Sam Brownback, is any example, people of Kentucky are in for a rocky road.

Conservative justices serving on the Supreme Court try to make people believe that every ruling that they make follows the U.S. Constitution literally—just as fundamentalist Christian leaders swear that every word out of their mouths came from their bible. Both conservative elements are wrong, however, and retired Justice John Paul Stevens has written a book suggesting how the constitution can be brought back into its original text. Six Amendments: How and Why We Should Change the Constitution presents these recommendations with an explanation of the problem and the history to the issues.

Following is a summary of these amendments, thanks to a posting on Daily Kos.

The “Anti-Commandeering” Rule: A 1997 5-4 ruling bans Congress from ordering state officials to carry out federal duties because two county sheriffs didn’t want to carry out Brady Act-mandated background checks for firearm sales. Now people prone to violence, such as the Virginia Tech mass shooter in 2007, can easily get guns. The ruling also affects other federal laws such as emergency responses to national catastrophes and acts of terror.

Suggested amendment adding the four words in boldface to the Constitution’s Supremacy Clause: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges and other public officials in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Political Gerrymandering: The practice of gerrymandering, loading districts with people registered in one political party, makes politicians more radical and elections less competitive, according to Stevens. A 1986 Supreme Court ruling eliminated most challenges to state legislatures controlling elections of U.S. House members: “[A] finding of unconstitutionality must [show] continued frustration of the will of a majority of the voters or effective denial to a minority of the voters of a fair chance to influence the political process.” Stevens believes that public power should not be allowed to enhance “the political strength of the majority party.”

Suggested amendment: “Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historic boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.”

Campaign Finance: Congress passed a law 108 years ago that banned all corporate contributions to political candidates; this federal law was followed by many states passing total bans of corporate activity to influence public policy. The laws were slowly reversed, culminating in the 2010 Supreme Court disasterthat gave corporations the unlimited right to finance campaign speech. Feeling that they had not gone far enough, the same five justices struck down any limit on total donations a person could make to candidates four years later, giving rich persons the right to spend millions in a single election. Three “sulky Supremes”—Justices Alito, Scalia, and Thomas—annually boycott President Obama’s State of the Union speech because he disagrees with their ruling. Thanks to the Supreme Court, the two Koch brothers plan to spend almost $1 billion in the 2016 election—more than the GOP—to control the results. Stevens purports that the problem can be solved by an amendment stating that corporations are not persons and money is not speech.

Suggested amendment: “Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.”

Sovereign Immunity: Citizens of one state are banned from suing another state in federal court, according to the 11th Amendment. This legal doctrine of “sovereign immunity” originated in 1400 when the king didn’t want to be sued without his consent. It shields the “sovereign,” any of the individual states, from court action by putting it above the law. Stevens disagrees and gives the argument against this amendment from Chief Justice Oliver Wendell Holmes: “It is revolting to have no better reason for a rule of law than that it was so laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since and the rule simply persists from blind imitation of the past.” Chief Justice William Rehnquist began a spate of rulings that extended sovereign immunity and weakened state compliance with national law. For example, Illinois avoided paying damages for non-compliance with a federal law for aiding aged, blind and disabled persons in 1974, and 15 years later the Rehnquist Court used this unwritten state sovereignty rule to keep Congress from authorizing the suing of a state of violating the Fair Labor Standards Act. In this case, Maine successfully refused to pay probation workers overtime. According to Stevens, state-owned institutions such as hospitals or police forces should not have a defense to federal claims that private institutions lack.

Suggested amendment: “Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.”

The Death Penalty: Arguments for the death penalty such as deterrence of crime are invalid, and DNA technology shows that many convicted murders, some already put to death, are innocent of the crime. Supreme Court rulings, including upholding a judge’s jury instruction to choose death when the evidence for and against it is balanced, made the death penalty more likely.

Suggested amendment adding the five words in boldface to the 8th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.”

Gun Control: No amendment has been more debated in the past few years than the 2nd Amendment. For over two hundred years, federal judges ruled two limitations of this amendment: it applies only for military purposes; and while it limits the power of the federal government, it does not limit the power of state or local governments to regulate ownership or use of firearms. Twice, however, the Roberts Court ruled against governments trying to control gun violence. One was creating a new constitutional right for a resident in Washington, D.C. to keep a handgun in the home, and the other extended this newly-created constitutional right to states.

Suggested amendment returning the 2nd Amendment to its original meaning and the power of regulating firearms to state and local governments with the five words in boldface: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia, shall not be infringed.”

In an interview with NPR, Stevens said:

“I think in time that what I have to say about each of these six issues will be accepted as being consistent with what the framers really intended in the first place. I think in time, reason will prevail.”

United States v. Miller: 1939. 8-0 ruling. Holds that Congress can ban possession of a sawed-off shotgun because that weapon has no reasonable relation to “a well regulated Militia.” Holding: McReynolds wrote unanimous opinion; Not Involved: William O. Douglas.

District of Columbia v. Heller: 2008. 5-4 ruling. Overturns a Washington, D.C., law and creates a new Constitutional right for a civilian in D.C. to keep an enabled handgun at home for self-defense. Holding: Scalia, Roberts, Kennedy, Thomas, Alito; Dissenting: Stevens, Souter, Ginsburg, Breyer.